John Boehner's legal lesson

Watching the genuine disbelief with which the salvo has been met on the left serves, oddly enough, to illustrate how important pushback in this area is — and, too, to remind us that separation of powers is a principle for which each generation must fight. Demonstrating its unmatched genius for meeting every criticism with a contemptuous slogan, Obama and his team have responded to the indictment by claiming ad nauseam that the president is being sued for “doing his job.” That this excuse is still viable is utterly remarkable. In the last few years, the White House has reflexively insinuated that “checks and balances” are not so much the foundation of the American settlement as an expendable and academic notion, relying for cover upon a host of obedient media allies who were only too happy to assure their readers that that limits on executive power were merely the preserve of fringe legal theorists like the nine justices who currently sit on the Supreme Court. No defeat, it seems, will be sufficient to cow them.

There is little that is genuinely new in politics. One can all too easily imagine Charles I telling the audience at Westminster Hall that that he was being executed for “doing his job.” Instead, Charles faced the axe for precisely the same reason that Barack Obama will find himself in court: for usurping powers that were not his, and for undermining the rule of law and parliamentary representation that are the birthright of every free man. In this, the rules are as clear as they can be, Articles I and II of the Constitution confirming that the executive is not permitted to write his own job description. Explaining his case, Boehner suggested that “if this president can get away with making his own laws, future presidents will have the ability to as well,” and noted, too, that “the House has an obligation to stand up for the legislative branch, and the Constitution.” That the statute on which Boehner has based his petition is an unpopular one does nothing to change this axiom. America law depends neither upon public opinion nor on the whims of the fashionable set for its integrity. Suppose that a Republican president had been returned two years ago. Would he be now sanctioned to rip the rulebooks to pieces if sentiment were in his favor? Nah.

Still, in any area that is complicated by partisan politics, the charge of opportunism will be a potent one. Obama plays the just-doing-my-job game largely because he knows he can get away with it. Depressingly, the most common reaction to the Boehner’s litigation has been incredulity. “I don’t quite understand,” Politico’s Ben White tweeted, “GOP hates employer mandate and is suing Obama over not enforcing it?” Picking up this line of inquiry, ThinkProgress sardonically noted that “House Republicans will sue Obama because he’s not implementing Obamacare fast enough.” Markos Moulitsas got in on the action, too, tweeting, “If Boehner is successful in lawsuit against Obama, he will … force FASTER implementation of Obamacare. Genuis! [sic]” As one would expect, Vox was thoroughly perplexed. “It’s as if Pat Riley was suing LeBron James to force him to begin playing for the Cleveland Cavaliers sooner,” wrote Ezra Klein.